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TURNER ESTATE. (10/05/62)

October 5, 1962

IN RE TURNER ESTATE.


Appeal, No. 75, Jan. T., 1962, from decree of Orphans' Court of Blair County, No. 470 of 1959, in re estate of L. May Turner, deceased. Decree reversed; reargument refused November 8, 1962.

COUNSEL

Cuthbert H. Latta, with him Robert C. Haberstroh, for appellant.

Martin Goodman, with him John R. Strawmire, and Goodman and Notopoulos, for appellee.

Before Bell, C.j., Musmanno, Jones, Cohen, Eagen and O'brien, JJ.

Author: Jones

[ 408 Pa. Page 532]

OPINION BY MR. JUSTICE BENJAMIN R. JONES

A narrow issue is presented: whether testatrix' holographic will revoked by implication the provisions of an earlier will of testatrix?

L. May Turner (testatrix), an 87 year old Altoona resident, died on June 28, 1959. Testatrix, a spinster, left three wills in physical existence: (1) a lawyer-prepared will dated January 29, 1958 (herein called first will) to which there was a codicil dated August 20, 1958; (2) a will drawn by testatrix dated June 25, 1959 (herein called second will); (3) a holographic will dated June 26, 1959 (herein called third will). The third will was probated by the Register of Wills of Blair County on July 1, 1959. Three and one-half months later Mary P. Turner (appellee)*fn1 appealed from the probate of the will on the ground that the second will should be probated with the third will.*fn2 After hearing, the Orphans' Court of Blair County sustained

[ 408 Pa. Page 533]

    the appeal and opened the decree of probate to enable the Register to act upon a petition for the probate of the second with the third will. From that decree this appeal was taken.

At the outset the respective contentions of the parties should be clarified. Testatrix' estate, valued at approximately $69,000, was composed of household and personal effects inventoried at approximately $500, cash (or its equivalent) approximately $14,500 and securities inventoried at approximately $54,000. Concededly, the third will effected a testamentary disposition of the household and personal effects and cash. The instant controversy involves only the disposition of testatrix' securities.

In testatrix' second will, her "stocks and other investments" were given to appellee and James W. Turner (appellant).*fn3 Appellant contends that the third will is inconsistent with the provisions of the second will and, thus, the second will was impliedly revoked by the third will; that, in particular, that provision in the second will which disposed of testatrix' "stock and other investments" was revoked by the overall dispositive scheme of the third will and by the gift by testatrix of the "balance" of her "money" to appellant, "money" being construed in the broad sense of "estate" or "property". Appellee contends that no revocation by implication of the second will has taken place and, in particular, there exists no inconsistency in the disposition of testatrix' "stocks and other investments" in the second will and the gift to appellant of the "balance of her "money", the latter being construed in its narrow sense of "cash".

[ 408 Pa. Page 534]

In passing upon these contentions we must ascertain, if at all possible, the intent of the testatrix. Such intent "... must be gathered from a consideration of (a) all the language contained in the four corners of [her] will*fn4 and (b) [her] scheme of distribution and (c) the circumstances surrounding [her] at the time [she] made [her] will and (d) the existing facts; ...:" Burleigh Estate, 405 Pa. 373, 376, 175 A.2d 838.

For the purpose of this appeal, certain facts may be considered as conceded or not seriously disputed: (a) all three wills are valid and genuine wills; (b) testatrix made the interlineations and alternations which appear in the second will; (c) at all times testatrix possessed testamentary capacity; (d) testatrix was very fond of James L. Turner, James W. Turner and their wives; (e) the first will, changing the provisions of previous wills, was occasioned by reason of the death of James L. Turner in 1957; (f) testatrix' very close friend and legatee in previous wills, a Miss E. K. Eyre, died and her death triggered the preparation of the second will; (g) testatrix was a very intelligent woman who knew and understood the difference between cash, securities and other specie of property.

Bearing in mind this background we examine the pertinent provisions of all three wills and the circumstances which surrounded the execution of each will.

Attorney C. M. Kurtz, testatrix' lawyer for approximately twenty years, drew the first will for testatrix on January 29, 1958. James L. Turner having recently died, testatrix explained to Attorney Kurtz that she wanted his "share" of the estate to be given to Mary Turner, his widow. This first will, containing an express

[ 408 Pa. Page 535]

    revocation clause, provided for testatrix' burial and bronze or marble plates for the graves of herself and brother, the care of her parents' burial plot, bequests of $1,000 to each of her two nephews' children, gave "the remaining cash" in equal shares to appellant, appellee and Miss Eyre and then gave testatrix' "stocks and other investments" in equal shares to the same three persons.*fn5 The first will further directed that for three months after her death the expenses of her apartment be borne by the estate, that household effects and personal belongings be given to Miss Eyre and Attorney Kurtz and Miss Eyre act as the personal representatives. In the codicil to that will - prepared by Attorney Kurtz - testatrix directed that the trust provisions for Miss Eyre include her share of the "cash" and that "the inheritance tax on all my bequests be paid by my said estate."

Miss Eyre died on May 29, 1959 and on June 8, 1959, at testatrix' request, Attorney Kurtz visited testatrix. Testatrix indicated that, due to Miss Eyre's death, she wanted to change her will but she was too weak at the time to discuss the contemplated changes and she gave the original of the first will and codicil thereto to Attorney Kurtz requesting that he keep them until she was able to make the contemplated changes. On June 23 and June 24 Attorney Kurtz visited testatrix but again she was too weak to discuss the contemplated changes and, on the latter occasion, testatrix was informed by Attorney Kurtz that he would be out of town for several days but would see her again on June 30.

On June 25, 1959, testatrix decided to make her own changes in the will. For that purpose she utilized an

[ 408 Pa. Page 536]

    unsigned copy of the first will upon which she made various alterations, additions and interlineations in her own handwriting. Testatrix struck out the provision concerning plates for the graves of her brother and herself and increased the amount of the gift for the care of her parents' burial plot by crossing out the word "two" and writing above it the word "three". By striking out the figure "$1000" and inserting "(2) Two", "2 Thousand" or "2,000" she sought to increase the bequests to her nephews' children from $1000 to $2000. The provision in the first will providing for a division of testatrix' "stocks and other investments" into "three equal parts" (one each for appellant, appellee and Miss Eyre) was altered by the insertion of the word "two" instead of "three" and by striking out the provisions for distribution of one of the parts to Miss Eyre. The provisions for the trust for Miss Eyre, for the maintenance of the apartment for three months after her death, for the gift to Miss Eyre of the household effects and personal belongings were stricken and Miss Eyre was eliminated as a personal representative. Initially, the First National Bank of Altoona and, later, the appellant was substituted in Miss Eyre's place as a personal representative. Testatrix struck out the date in the testimonium clause "29th day of January A.D. 1958" and inserted in place thereof "25th day of June 1959". On the signature line testatrix affixed her signature, an unwitnessed signature the genuineness of which is not questioned.

The next day testatrix drew the third or holographic will on three sheets of ruled paper. On this instrument the date "June 26,-59" appears on the upper right-hand corner of the first page and below, in the top middle of the page, "My last will and testament". This will provides the place of testatrix' burial, that her debts be paid, that the expenses of maintaining her apartment for three months be paid to appellant and that "

[ 408 Pa. Page 537]

    all money derived from sale" of the household furnishings be given to appellant and that her jewelry and china be sent to appellee for division "among her children". Testatrix inserted the provisions found in the second will for the care of her parents' burial plot and the provision found in the codicil "I direct that the inheritance tax on all ... my bequests be paid by my said estate." After appointing the First National Bank of Altoona and Attorney Kurtz as her executors, testatrix inserted a testimonium clause and signed her name. Thereafter in the will testatrix gave her "hand-painted chocolate set to Mrs. H. W. Turner" adding that the rest of her hand-painted china "... go to ... [appellee] ... to be divided among her children." Testatrix then stated "I give to each person named below, two thousand dollars" and set forth the names and addresses of four legatees,*fn6 adding that a Mrs. Lucy Turner be given $100. Testatrix then provided "The balance of my money to be given to Mr. James W. Turner [appellant] ..., now living with me," (emphasis supplied) and added a testimonium clause in which she used June 26, 1959 as the new date. Testatrix then drew a signature line upon which she signed her name and two neighbors were called in to sign as subscribing witnesses. On June 27 testatrix sent for the same witnesses, told them she had accidentally destroyed the last page of her will and asked them to witness a new page. The witnesses signed the new page and, at testatrix' request, the date of June 26, 1959 was repeated. Testatrix died in her sleep some time on June 28.

Testatrix had told Mrs. Bishop, one of the subscribing witnesses, that her will could be found in a dresser drawer in her bedroom and, after testatrix' death, there was found in this dresser drawer an envelope sealed

[ 408 Pa. Page 538]

    with scotch tape bearing the inscription "My will 1959". This envelope was turned over to appellant and he gave it unopened to Attorney Kurtz who opened it. In the envelope were a copy of the first will with testatrix' alterations and interlineations thereon (that is, the so-called second will), a copy of the codicil to that will, and the third will.

[ 408 Pa. Page ]

The narrow issue which we must determine is whether the third will of testatrix has revoked, in whole or in part, the provisions of the second will. Revocation of an earlier will by a later will may be by express or implied revocation (Wills Act of 1947, Act of April 24, 1947, P.L. 89, §§ 5, 6; 20 P.S. §§ 180.5, 180.6). In the case at bar, there is no express revocation: if the third will revokes the second will, in whole or in part, such revocation must be by implication. In Gray Will, 365 Pa. 411, 416, 76 A.2d 169, this Court stated: "... the declaration of revocation need not be express, it may, under the authorities, be by necessary implication. An earlier will can be revoked by a later will or other writing ... which disposes of an estate in an entirely different manner than the earlier will and is inconsistent therewith." See also, Kehr Will, 373 Pa. 473, 95 A.2d 647. "If the dispositive provisions of the later will are inconsistent with the dispositive provisions of the earlier will, the later will revokes the earlier will just so far as it is inconsistent with it and no farther": 2 Bowe-Parker, Page on Wills, § 21.43, p. 412. See also: Price v. Maxwell, 28 Pa. 23, 38; Gensimore's Estate, 246 Pa. 216, 92 A. 134; McClure's Estate, 309 Pa. 370, 165 A. 24; Hartman's Estate (No. 1), 320 Pa. 321, 182 A. 234; Burtt Will, 353 Pa. 217, 44 A.2d 670.

In determining whether the third will is inconsistent with the second will to the extent that the provisions of the latter are revoked we must look to the dispositive scheme of both instruments and from the language employed by testatrix in the third will ascertain her intent.

[ 408 Pa. Page 539]

A comparison of the provisions of the second and third wills is important:

Second Will Third Will

1 Direction that debts and fu- 1 Direction that "all debts" be

     neral expenses be paid paid

2 Direction that burial be in ...


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